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s. 5 & 7.


S. 6.


5 Eliz. 1. c. 23.

Due erecution

quest to be lawful; upon pain of forfeiture to the person
cited, of double damages and costs, to be recovered by t'enally.
action of debt, or on the case, in any court of record; and
also of £10. for every person so cited, one half to the
king, and the other half to him that will sue in


court of record by writ, information, bill, or plaint. Provided, (s. 4.) that it shall be lawful for every archbishop to cite any person inhabiting within his province, for causes of Protiso as to the heresy, if the ordinary immediate consent, or do not resy. his duty And provided (s. 5 & 7.) that this act sball not extend to the prerogatives of the archbishops of Can- Proviso as to proterbury and York, of calling persons for probate of testaments within their respective provinces. By s. 6. do archbishop, &c. or other having spiritual jurisdiction, Fecs for citasha:l denand more for the seal of any citation, than 3d. upon the pains before limited. The jurisdiction of the ecclesiastical courts is aided by the 5 Eliz, c. 23. Eng.

s. 1. Eng. swhich ecites, (s. 1.) that divers offences appertaining to the jurisdiction of the ecclesiastical courts and judges, are

of the writdeeg. many tiines unpunished for want of the due esecution of communicato

capiendo prothe writ de excommunicato capiendo ; for that the said writ vided for. is not returnable into any court that might have the judgment of the well executing and serving of the said writ, &c; and therefore enacts, (s. 2.) that every writ of excommunicato capiendo, that shall be awarded out of the court of chancery against any person within the realm, shall be inade in terr, and returnable in the court of K. B. in the term after the tesle'; and said writ shall contain 20 days between the teste and the return: And after the said writ shall be so made and sealed, it shall be forthwith brought into said court of K. B. and there, in the presence of the justices, opened and delivered of record to the sheriff, or other officer, or his deputy: And if the writ be not duly returned, or any default be in the not executing said writ, the justices shall assess such amercement upon the sheriff, or other officer, as shall be thought meet; wbich amercement shall be estreated into the exchequer. By s. 3. the sheriff, &e. shall not be compelled to bring tlie body of such person named in the writ into the court at. the day of return, but shall only return the writ with de


s. 2.

S. 3.

S. 4.


claration briefly how he hath executed the same. And by s. 4. if the sheriff, &c. shall return, that the party cannot be found within his bailiwick, the justices shall award a capias against the person named in the excommuficuto capiendo, returnable in term time, 2 months at Jeast after the teste, with a proclamation to be contained within the writ, that the sheriff, &c. in the full county court, or else at the general assizes and gaol delivery, or else at a quarter sessions, shall make proclamation 10 days at least before the return, that the party shall within 6 days after such proclamation, yield his body to the prison of the said sheriff, &c. according to the first writ of excommunicato capiendo, upon pain of forfeiture of £10. And thereupon, after the proclamation had, and the 6 days past, the sheriff, &c. shall make return of the capias into said court of K. B. of all that he hath done, and whether the party have yielded his body to prison or not. By s. 5. if the parties have not yielded their bodies to

prison according to the proclamation, every such person Penalty for disobedience. shall, for every default, forfeit to the crown £10. which

shall be estreated into the exchequer. And by s. 6. the justices shall thereupon award one other capias with like

proclamation, and a pain of £20. to be mentioned in the Second capias. 2d writ and proclamation; and the sheriff, &c. shall ese

cute the same in like manner as the first. And if the sheriff, &c. return upon the 2d capias, that he hath made the proclamation, and that the party hath not yielded his body to prison, tlien the said party shall forfeit to the crown £20. which the justices of K. B. shall likewise cause to be

estreated. And by s. 7. the justices shall likewise award Third capias.

one other capius, with like proclamation and pain of forfeituré as was contained in the 2d capias; and the sheriff, &c. shall exécute the 3d capias in like manner as the 1st and 2d writs. And if the sheriff, &c. shall make return of the 3d capias, that the party hath not yielded his body to prison, such party shall forfeit to the crown other £20,

which shall likewise be estreated : and thereupon the said Cap'as, and pe- . nalny of £20. justices shall award a capias, with like proclamation, and continued infinitely.

like pain of forfeituré of £20. and the said justices shall have, power aivard such process of capias

s. 6.

$. 7.

S. 8.

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s. 10.

9. 11.

with like proclamation, and pain of forfeiture of £20. until by return of some of said writs it shall appear that the party hath yielded himself to the custody of the said sheriff, &c. By s.8, when any person shall yield his body to the sheriff, &c. upon any of the said writs of capias, he shall Imprisonment of

the party. remain in prison without bail, baston, or mainprize, as if he had been apprehended upon the ercommunicato capiendo. By s. 9. if any slieriff, &c. make an untrue return upon any of the said writs, that the party hath not Forfeiture of yielded his body upon the proclamations, such sheriff, serif for false. &c. shall forfeit £40, which the party grieved shall recover by action of debt, &c. in any court of record. By s. 10. all archbishops and bishops, and others having autho- Archbishop ! rity to certify any person excommunicated, shall have like n fy submissions. authority to receive the submission of the person exconnunicated, and hiin to absolve and release; and the same to signify into the chancery, and thereupon to have such writs for the deliverance of the person absolved, as heregofore. Provided (s. 11.) that in Wales, the counties palatine, and in the cinque ports, after any significavit Proviso as to being of record in the chancery, the tenor of such sig.

ales, &c. nificavit by mittimus shall be sent to the head officers of the county in Wales, &c. within whose jurisdiction the offender shall be resiant, viz. to the chancellor or chamberlain for the county of Lancashire, and Chester; and for the cinque ports, to the lord warden ; and for Wales, and Ely, and the county of Durham, to the chief justice or justices tliere; and the said officers shall have power to : make like process to the inferior officers there, returnable before the justices there at their next sessions or courts, 2 months at least after the testc of such process; so as they shall proceed in their sessions and courts as the justices of the court of K. B. are so limited in term-times to do. By s. 12, any person at the tiine of any sucli capias awarded, being in prison, or beyond the seas, or witliin

Sring for diso age, or non sana memorie, or woman covert, shall not abled personi. incur the forfeitures aforementioned; and the party grieved may plead every sucli matter in bar, upon the distress or other process that shall be made for levying the said forfeitures. And by s. 13. if the offender, against s. 13.


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Addition of pare

S. 14.


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whom such writ of excommunicato cupiendo sliall be ty required in awarded, shall not in the same writ have a sufficient ad

dition, according to the i Hen. 5. c. 5.; or if in the sig.
Curses of excom-
muunication to be nificavit it be not contained, that the excommunication

doch proceed upon some cause or contempt of some ori-
ginal matter of beresy, or refusing to have his child hap-
tized, or to receive the communion, or to come to divine
service, or error in matters of religion or doctrine, in-
continency, usury, simony, perjury in the ecclesiastical
court, or idolatry, then all forfeitures limited against
such persons shall be void; and by way of plea

to be allowed to the party grieved. And by s. 14. if the Addition withe addition shall be with a nuper of the place, then, one

writ of proclamation, (without any pain expressed) shall
be awarded into the county where the offender shall be
most commonly resiant at the time of awarding the first
capias with pain, returnable the day of the return of the
first capias. And if such proclamation be not made in
the county where the offender shall be most commonly
resiant, such offender shall sustain no forfeiture for not
yielding his body. There is no statute in Ireland, similar
to the 23, Hen. 8. c. 9. or 5 Eliz. c. 23,

The statutes which relate to the jurisdiction of the
court military, or court of chivalry; and of the courts
maritime, or admiralty courts, and which statutes define
the injuries cognizable in these courts respectively, will

be found in a preceding chapter of this book, Cases wherein II. With respect to the encroachment of jurisdiction, the world of pror, for which injury a remedy is provided by the writ of prohibition tieth nol. 13 Edw. 1. st, 4. hibition issuing out of the court of king's bench; the

13 Edw. 1. st. 4. E. & I, declares, that the clergy shall not be punished if they hold plea in court christian of such things as be merely spiritual, viz. of penance enjoined by prelates for deadly sin, as fornication, adultery, and the like, for which sometimes corporal penance, and sometimes pecuniary, is enjoined, especially if a freeman be convict of snch things. Also if the prelates punish for leaving the church yard unclosed, or for that the church is uncovered, or not conveniently decked, in which cases none other penance can be enjoined but pecuniary. And if a parson demand of his


$ 2.

E. & I.

c. 1. E. & I.

shere riches be

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C. 2.

parishioners oblations or tithes due or accustomed, or if a parson sue against another parson for tithes greater or smaller, so that the fourth part of the value of the benefice be not demanded; or if a parson demand mortuaries where a mortuary hath been used; and if a prelate (or patron demand of a parson a pension due to him; all such demands are to be made in a spiritual court: And for laying violent linds on a clerk, and cause of defamation, it shall be tried in a spiritnal court, when money is not demanded, but a proceeding for punishinent of sin. In all cases 'aföre tehearsed, the spiritual juilge shall have power to take cognizance, not:vithstanding the king's probibition. And by the 9 Edw 2. st. 1. c. 1. '9 Fdw. 2 st. 1. E. & I. in tithes, obventions, oblations, mortuaries, (wlien they are propounded under these nanies) the king's pro- No prohibition bibitioíi' stiall hold no place. But if a cerk sell his tithes, demunded. being gathered, if the money be demanded before a spi

Exception. ritual judge, the king's prohibition shall lie; for the spiritual goods are made temporal. But by this statute (c. 2.) if debates arise upon the right of titles, having original

If right of lithias from the right of patronage, and the quantity of the entroterled, tithes come to the fourth part of the gooils of the church, Prohibition lies, the king's prohibition shall bold place, if the cause come before a judge spiritual. Also if a prelate enjoin a pe- So if pecuniary nance pecuniary, and it be demanded, the king's procla-Joined. mation shall bold place; but if prelate's enjoin a penance corporal, and they which he punished will redeemn such penance by money, if the money be demanded before a judge spiritual, the king's prolribition shall not hold place. But by c. 3 & 4. in cases of laying violent lands upon a c. 3 & 4. clerk, or in cases of 'defamation, if the offender will re

Excprior. deem the penance corporal (which by this statute the prelate may enjoin) by giving money to the prelate, or the party grieved, it shall be required before the prelate, and the king: prolibition shall not lie. And by the 1 Ew. 3. st. 2. c. 11. E. & I. when clerks or others have i Pdwr, been indicted in the turn, and after their deliverance do c. 11. E X I. sue in the spiritual court against the indictors, surmising No suit in spirithat they defamed them; in such case every man grieved ag unse indicashall have a prohibition formed in the chancery upon his øs.

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